Friday, August 22, 2014

WIRTW #333 (the “firsts” edition)


10544379_10152404410596130_904692989877768665_nBig week of firsts for the Hyman family. First week at a new job for me. First week of third grade for Norah. And, it was the first day of kindergarten for Donovan, who after watching his sister walk the halls of her school for the past three years, is finally proud to call it his school too.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 21, 2014

Cop loses big ADA verdict on a finding of no disability


When is a disability not a disability? When an employer fires a difficult employee based on his inability to get along with his co-workers, his ADHD diagnosis notwithstanding, at least according to the 9th Circuit in Weaving v. City of Hillsboro (8/15/14).

Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police office, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006.  His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis.

The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.

A “cantankerous person” who has … trouble getting along with coworkers is not disabled under the ADA…. One who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA…. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.

Since Congress amended the ADA in 2009 to expand the definition of “disability,” conventional wisdom has said that most medical conditions will qualify for protection under the ADA. This case sets the bounds of the exception. Weaving notwithstanding, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. In the right case, however, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail that the employee’s medical condition does not rise to the level of a “disability.” The better (safer?) course of action, however, is to assume that the medical condition is an ADA-protected disability, and instead argue that the condition notwithstanding, an employer cannot offer any reasonable accommodation that will enable the employee to perform the essential functions of one job. You end up at the same place—a dismissal—albeit on safer legal footing. Regardless of how you get there, however, it is reassuring to see a court refuse to protect an alleged jerk employee on a claim that a disability caused the awful behavior.

Wednesday, August 20, 2014

When the cat’s paw strikes retaliation


What happens when a decision-maker acts with an innocent motive, but unwittingly carries out the retaliatory motive of a subordinate? Does the cat’s paw impute the unlawful intent to the otherwise innocent manager or supervisor? In Seoane-Vazque v. The Ohio State University (6th Cir. 8/19/14) [pdf], the 6th Circuit held that while the cat’s paw applies to retaliation claims, it is still bound by the higher but-for causation standard the Supreme Court applied to retaliation claims in University of Tex. S.W. Med. Ctr. v. Nassar.
Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.
Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.

This all makes for an interesting academic discussion, but once you reach these platitudes of burden of proof and causation, you’ve already lost. You’ve already fired an employee who engaged in protected conduct. You’ve already gotten sued. And, you’ve already spent a tidy sum investigating the complaint, taking discovery, and preparing a (hopefully winning) motion for summary judgment. You’ve spent $100,000 (or more) to justify the termination of a marginal employee. In that case, have you really won?

What’s the safer course of action? Only terminate as a last resort. Treat employees who engage in protected activity with kid gloves. Make an informed decision early in any case whether it is one worth fighting or settling. Better yet, consider severance pay in exchange for a release claims in all but the most egregious of terminations. Nassar’s “but-for” causation standard may shift employers’ decisions to fight over flight in more cases, but employers should resist the litigation urge, which is usually a losing proposition for all. I know this is odd advice coming from a litigator, but a termination decision must be fully informed, and the vast void of litigation costs must be a key part of that decision.

Tuesday, August 19, 2014

Even the lone wolf can establish protected concerted activity with today’s NLRB


In Fresh & Easy Neighborhood Market (8/11/14) [pdf], the NLRB held that an employee engaged in protected concerted activity merely by asking co-workers for help in making a sexual harassment complaint to her employer. It was irrelevant to the Board whether the employee had engaged other employees for group activity; all that mattered was that the employee engaged others at all.

Margaret Elias, a cashier, wrote a note on a whiteboard about some training known as “TIPS.” When she returned to the whiteboard the next day, she noticed that the “P” in “TIPS” had been changed to a “T,” and someone had drawn a picture of a worm (or peanut) urinating on her name. In support of her intent to file a sexual harassment complaint with her employer, Elias asked three co-workers to sign a piece of paper that contained a copy of the whiteboard. When the employee relations manager later spoke to Elias about her harassment complaint, she asked why Elias felt the need to obtain co-workers signatures, and instructed her not to obtain any further statements so that she could conduct an investigation. Elias admitted that was only filing the complaint on her own behalf, and her co-workers were not involved other than as potential witnesses.

Based on these facts, the NLRB concluded that the employer violated the Act by questioning Elias about the signatures she obtained:

Here, Elias sought her coworkers’ assistance in raising a sexual harassment complaint to management, by soliciting three of them to sign the piece of paper on which she had copied the altered whiteboard message in order to “prove” the harassment to which she had been subjected. Although she did not intend to pursue a joint complaint, her testimony establishes that she wanted her coworkers to be witnesses to the incident, which she would then report to the Respondent…. Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding this workplace concern would constitute concerted activity. Elias did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character.

Even if the employee was pursuing her own individual claim, her “selfish motivation” for speaking to her co-workers was irrelevant because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”

This case creates a dangerous precedent. It enables an employee to create an unfair labor practice out of thin air merely by airing an issue with co-workers, regardless of whether those co-workers share in that concern. It makes case for the lone wolf, who, even though, by definition, a lone wolf cannot act in concert.

I’ve long argued that the current iteration of the NLRB is using “protected concerted activity” as a life-vest to prop up its own existence. Fresh & Easy does little to dissuade me of that opinion. If a single employee, admittedly acting on her own behalf, can create an unfair labor practice merely by talking to other employees about a workplace issue, then any workplace conversation could constitute protected concerted activity. If that is the rule, then good luck disciplining employees for anything.

Monday, August 18, 2014

Announcing a new beginning at Meyers Roman


And to make an end is to make a beginning.
― T.S. Eliot

According to my blogging service, this is my 2,000th post. While this milestone is mind-blowing (at least to me), I am marking this bi-millenium with news of a different kind. Today, I start the next phase of my career at Meyers, Roman, Friedberg & Lewis.

Why switch law firms, you ask? It’s hard to quantify “why.” New opportunities, new challenges, new surroundings, etc. In short, I feel energized, which, when you have to get up and go to work everyday, is a really good thing. I am excited by everything Meyers Roman offers to my career and to me. I’m thrilled to join a vibrant firm with a vibrant labor and employment practice.

I’d be remiss if I did not say thank you to the firm that I’ve called home for the past 8 years, and was the only home this blog has known. Kohrman Jackson & Krantz was nothing but supportive of me and this blog, and for that I will be eternally grateful.

For you, my loyal readers, the move will be transparent. Other than seeing a different firm’s logo above the fold, nothing else is going to change (for now). I’ll still bring you daily posts, Monday through Friday, which will still include my famous Friday What I’m Reading weekly recap. Still, new beginnings bring new opportunities, and I’m looking forward to version 2.0 of the blog, which will bring more multimedia, including (if I can get my stuff together) a podcast.

I’d love to hear from anyone and everyone. My new contact information is:
Jon Hyman
Meyers, Roman, Friedberg & Lewis
Eton Tower
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122
216-831-0042
jhyman@meyersroman.com
www.meyersroman.com

Friday, August 15, 2014

WIRTW #332 (the “carpe diem” edition)


There are lots of snippets of Robin Williams I could play. I chose this one.

I'll see everyone Monday with some huge news.  

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 14, 2014

When retaliation stands the test of time


kvtakgtqOften when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse is true—if a long period of time elapses between the protected activity and the adverse action. Can an employer save itself from a retaliation claim simply by waiting it out? This was the question the court faced in Malin v. Hospira, Inc. (7th Cir. 8/7/14).

Deborah Malin worked in the IT department of the Abbott Laboratories’s hospital product division (spun off to a new company, Hospira, in 2006). In July 2003, she informed her direct boss, Bob Balogh, that she was going to complain to HR about sexual harassment by her indirect supervisor, Satish Shah, who reported to Mike Carlin. Before she could complain to HR, Balogh told her that Carlin told him to do everything in his power to stop Malin from going to HR. Malin ignored the stop sign and lodged her harassment complaint with HR.

Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions but received none of them. On June 14, 2006, the management team (including Carlin, then the CIO) met to discuss new roles for current IT employees. Five days later, Malin took emergency FMLA leave. Several weeks later, the IT department announced its reorganization, which again resulted in Malin being passed over for a promotion.

Among other claims, Malin claimed that when Hospira executed its 2006 reorganization, it retaliated against her for the 2003 harassment complaint. The court concluded that the intervening three-year gap between the harassment complaint and the decision not to promote Malin was insufficient to defeat her retaliation claim:

[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation…. Rather, if the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support her claim….

The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira. Malin’s immediate supervisors repeatedly told her that she would be an excellent fit for newly-available positions at higher salary grades and that they would recommend that she be promoted into them. Nevertheless, Malin did not receive any promotions at Hospira between 2003 and 2006…. These incidents are circumstantial evidence that Carlin remembered Malin’s complaint about Shah and acted to prevent her from being promoted at Hospira long after the complaint was made.

This case serves as a solid reminder that an employer cannot hold a grudge against an employee who engaged in protected activity, with the hope that the passage of time will permit later retaliation. If an employee can connect the dots between the protected activity and the adverse action, the employer faces risk, no matter how much time has passed.

Image via Robbert van der Steeg (originally posted to Flickr as Eternal clock) [CC-BY-SA-2.0], via Wikimedia Commons

Wednesday, August 13, 2014

Do not force employees to work during FMLA leave


With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.

When Tondalaya Evans, a pregnant payroll manager for Books-a-Million, requested FMLA paperwork for her impending September 1 due date, her employer told her that she “would not go on leave but would work while on maternity leave.” She protested, but was told that she had no choice because the "go-live" date for the new payroll system on which she had been working had been delayed until November. Evans gave birth on August 30, and immediately starting working (full-time, and with full pay) upon arriving home from the hospital with her baby on September 1. When she eventually returned to the office, she was transferred to a new position. Unhappy with the transfer, Evans quit and sued, claiming, among other things, FMLA interference.

The court concluded that requiring an employee to work (even for pay) in lieu of requested FMLA leave for which the employee was entitle to take violates the FMLA. In doing so, it rejected the employer’s argument that it could not have violated the FMLA because it paid Evans for her time off.

It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.

What lesson can employers learn from this case? Don’t suggest or require that an employee work during an FMLA-eligible leave (even if it’s paid). The purpose of the FMLA is to enable employees to take time off from work for certain qualifying medical and other reasons without from the encumbrance of work responsibilities and the fear of losing one’s job while away from work. Telling an employee that she cannot take an FMLA, but instead can (must?) work from home, undercuts both of these purposes. It both forbids an employee from taking time off, and puts the employee’s job at risk because of slipped performance as a result of divided attention. FMLA leave is federally guaranteed for a reason. Don’t mess with that reason by requiring work (albeit paid and at home) in lieu of bona fide leave of absence.

Tuesday, August 12, 2014

Apparently, “information security” is now an unfair labor practice


In Fresh & Easy Neighborhood Market (7/31/14) [pdf], the NLRB examined the following “Confidentiality and Information Security” policy:

We have an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly. The trust of our staff and customers is very important, so we take our obligations under relevant data protection and privacy laws very seriously. We should also regard all information concerning our business as an asset, which, like other important assets, has a value and needs to be suitably protected.

What does it mean for me? …

  • Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.

The Board concluded that this directive reasonably tends to chill employees in their Section 7 rights to engage in protected concerted activity:

We find … that employees would reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment…. In addition, the instruction to use information “only for the purpose for which it was obtained” reinforces the impression that the rule prohibits Section 7 activity, as the Respondent’s business purpose clearly does not include protected discussion of wages or working conditions with fellow employees, union representatives, or Board agents.

Here’s the problem with the Board’s  current application of the Section 7 “protected concerted” rules to employer policies. It presumes bad intent by the employer. The Board imagines a parade of horribles, and strikes down any policy on account of some hypothetical bad conduct by the employer.

Member Johnson picks up on these themes in his dissenting critique:

Of course, the relevant inquiry is whether employees would reasonably construe rules as restricting Section 7 activity, and not whether employers intended the rule to restrict Section 7 activity. But certainly, this fact does not support construing rules to presume a malicious intent on the part of the employer. An employer’s primary purpose in drafting employee handbooks and policies is not to stifle employee rights, but to attempt to comprehensively cover many topics, including compliance with other workplace statutes and policies that protect business interests and the workplace environment of its employees….

As an alternative approach, Member Johnson proposes giving the challenged rule a reasonable reading, instead of deconstructing it with an eye towards illegality.

I believe the best approach is to examine the overall context of a disputed rule—from the general purpose of the document in which the rule is contained, its introduction, its general sections and topics and accompanying explanatory texts, and finally, to the disputed rule and the text around it—to give a rule a reasonable reading.

While Member Johnson is 100% correct, his view is the minority view (at least for the next 30 months). Thus, employers would be prudent to carefully review all workplace policies in light of these gruesome standards, and seek the guidance of experienced labor counsel to draft or, at a minimum, review all handbooks and other workplace policies.

Monday, August 11, 2014

You might want to reconsider if you send your FMLA forms via regular mail


One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed … that it reached its destination at the regular time, and was received by the person to whom it was addressed.” It gives the benefit of the doubt to the sender, based on the reliability of the U.S. Postal Service.

Well, it’s 2014, and at least one federal court of appeals is no longer enamored with the reliability of the U.S. Postal Service. In Lupyan v. Corinthian Colleges, Inc. (3d Cir. 8/5/15) [pdf], the 3rd Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware), rejected the mailbox rule and ruled that its presumption does not apply when an employer sends FMLA forms via regular snail mail, and the employee, without any other support, denies that he or she received the forms in the mail.

Here are the facts. Lisa Lupyan, an instructor at Corinthian Colleges, took a personal leave of absence for depression. While out, she sent the school a completed FMLA medial certification supporting her leave. As a result, the employer converted the leave from “personal” leave to “FMLA” leave, and mailed, via regular U.S. mail, the appropriate FMLA forms designating her absences as such. When Lupyan attempted to return to work after 14 weeks, the employer told her that it had already terminated her because she had failed to return after her 12 weeks of FMLA had expired. 

The court concluded that because the employer could not prove that Lupyan had received the forms, she was entitled to a jury trial on her FMLA claims.

CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt….  Accordinly, we hold that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s positive denial of receipt, creating an issue of fact for the jury

More importantly, the court opined on the type of notice an employer should expect to provide in today’s modern age.

In this age of computerized communications and handheld devices, it is certainly not expecting too much to  require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as  important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.

What does this mean to your business? Stop sending FMLA notices by regular U.S. mail. Instead, use a method that enables you to prove delivery.

  1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
  2. If you mail, send via a method that permit you to track delivery — whether it’s certified mail with a green card to return, or an express delivery service with a tracking number.
  3. If you email, click the box on Outlook that will send a delivery notice upon receipt.

I was also planning to write a long dissertation on what this employer did wrong, how it failed to effectively communicate with the employee during and after her leave, and how a few simple phone calls could have avoided this entire mess. Then I read Jeff Nowak’s thoughts on his FMLA Insights blog, and decided I couldn’t say it any better:

I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? … If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Am I correct? Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!

This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong?  First, it insisted that the employee return without restrictions…. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.

Friday, August 8, 2014

WIRTW #331 (the “Rosie” edition)


yij0z0huAccording to a recent report jointly published by the Pew Research Center and the Imagining the Internet Center, almost half (48%) of technology experts believe that by 2025, robots or digital agents will substantially take over many jobs currently performed by humans. These same experts expressed concern that this displacement will lead to increases in income inequality, the unemployability of certain workers, and breakdowns in the social order.

So, readers, are we on the verge of Isaac Asimov’s I, Robot, or is this a pipe dream of sci-fi fanboys?

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 7, 2014

More on anticipatory pregnancy discrimination


Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.

Given all of the questions raised, I thought it best to follow up with some answers.

1. Is this case the rule or an exception?

This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the ADA in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the FMLA protect this employee?

To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.

3. How do you sleep at night (you #%*&^!)?

I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.

Nevertheless, firing an employee under these circumstances is risky. You need to make sure:
  1. The employee is not FMLA-eligible.
  2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
  3. If there is ever a time to call you employment lawyer before firing an employee, the circumstances of this case would be that time.

Wednesday, August 6, 2014

Beware the “anticipatory pregnancy” claim


In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

Araceli Cadenas worked as a certified nursing assistant at a nursing and rehabilitation facility. Her position required her to pull, push, or lift at least 20 pounds. At her 15th week of pregnancy, Cadenas presented her employer a note from her doctor stating that once she reached the 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Faced with an employee who soon would be unable to perform the essential functions of her job, the company fired her.

First, the court concluded that that Butterfield had no duty to accommodate Cadenas’s pregnancy-related restrictions.
Meadowbrook was not required to accommodate Cadenas’ physical restrictions—if it would not have accommodated a non-pregnant employee’s similar restrictions—or give her any special treatment, such as light duty, if it would not have afforded that option to a non-pregnant employee. Here, there no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. Cadenas submits no competent evidence to contradict the fact that Meadowbrook denied both pregnant and non-pregnant employees an accommodation of light duty work unless they had suffered a work-related injury. This neutral policy is not evidence of discrimination.
Thus, without any duty to accommodate, Meadowbrook was entitled to fire Cadenas at her 20th week of pregnancy, because, at that time, she could not perform the basic functions of the job.

The court then turned to the timing of the termination. Was Butterfield justified in firing Cadenas at week 15, even though her restrictions did not take affect until week 20. On this issue, Cadenas’s pregnancy discrimination claim faired much better.
In this case, Meadowbrook never suggested, or provided evidence, that there was any business reason not to let Cadenas work during the five weeks remaining before her restrictions went into effect.… Without any physical restrictions applicable between weeks 15 and 20 of Cadenas’ pregnancy, Meadowbrook has pointed to no non-discriminatory reason for terminating Cadenas effective immediately.… On these facts, a reasonable jury could conclude Meadowbrook terminated Cadenas because of her pregnancy, not because she was subject to any present restrictions.
Thus, Cadenas can take her claim to a jury, but her economic damages are limited to five weeks back pay.

What can we learn from this case?

  1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
  2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

[Hat tip: Judy Greenwald at Business Insurance]

Tuesday, August 5, 2014

LinkedIn’s $6M FLSA settlement provides a good lesson to employers (updated)


LinkedIn will pay nearly $6 million in back pay and liquidated damages to 359 current and former employees following a Department of Labor investigation, reports the DOL.

The employees, reports Business Insider, are commissioned inside salespeople. Typically, inside salespeople are not exempt under the FLSA, and must be paid overtime for all hours worked over 40. If an employee is paid a straight commission, you would, on a weekly basis, divide the commissions paid that week by the total numbers of hours worked to arrive at the hourly rate for that week. You would then multiply that hourly rate by 1.5 to obtain the overtime rate for that week, and pay the 0.5 premium rate on top of the commissions for any hours worked in excess of 40 for that week. LinkedIn says that the violation “was a function of not having the right tools in place for some employees and their managers to track hours properly.” Likely, it had mis-assumed that its inside salespeople were exempt.

This story offers businesses two important lessons:
  1. Do not assume that you need not pay overtime to employees who are paid other than hourly. The method of pay is not the only factor that determines whether an employee is exempt. Instead, you must undertake a fact-specific analysis for each employee’s job duties to determine if it falls under one of the FLSA’s narrow exceptions. Making assumptions without taking the time to do the analysis will result in costly wage-and-hour mistakes.
  2. If the DOL comes knocking, cooperate. Cooperation helps demonstrate that any errors are sins of omission, not of commission. Ignorance may not excuse FLSA violations, but it will definitely put you in a better light with the DOL than will chicanery. And, if the error is cut and dry, pay. You gain nothing from digging in your heels to fight a clear wage-and-hour mistake, other than incurring a gaggle of legal fees. I’m not saying you should go this alone with legal counsel and guidance, but the lawyer should be guiding you to a resolution, not a costly battle.

Monday, August 4, 2014

You cannot fire an employee who asks for time off for his pregnant wife's medical appointment


One of the very first posts I ever wrote on this blog, all the back in May of 2007, detailed the EEOC’s then-recent publication of enforcement guidance on what it called caregiver discrimination. It seems that more than seven years later, some employers still haven’t gotten the message. Consider, for example, Rice v. Kellermeyer Company (N.D. Ohio 7/15/14).

In early 2012, Ronald Rice, the VP of Sales at Kellermeyer, announced to his co-workers that his wife was pregnant with their first child. On June 6, Rice requested permission to use vacation time from June 11 through June 15, in part because of “an unexpected appointment” for his pregnant wife. Rice’s supervisor declined to permit Rice to use paid leave for June 14 and June 15, and told him that if he “chose to take those days off, they will be unpaid.” Rice then requested FMLA paperwork from the director of human resources, to enable him to attend the appointment. Three days later, he was fired.

With these facts, the district court showed no hesitation in denying the employer’s motion for summary judgment and sending this case to a jury to decide.

In writing about this case on his FMLA Insights blog, Jeff Nowak said, “We have to stop sticking it to pregnant moms and expectant dads.” He’s 100 percent correct. We have a parental crisis in this country. No one should have to choose between a job and “an unexpected appointment” for one’s expectant wife. More broadly, no one should have to choose between a job and a family responsibility or event. 

Employers, we are facing a crisis over the issue of parental leave. The more stories we hear like Ronald Rice’s, the louder the cry will become for Congress to step in and fix this problem legislatively. Do you want new laws passed that will mandate expanded parental leave for more employers, or do you want the FMLA to remain as it is? As long as there exists employers like the employer in this case, the cry for expanded parental leave rights will continue. Eventually, it will become too loud for Congress to ignore. Be proactive with these issues in your own workplace, or Congress will become reactive. The choice is yours.

Friday, August 1, 2014

WIRTW #330 (the “be careful what you post” edition)


You’d think that people would know better than to post a private conversations with one’s attorney over a public social network. Kaiser v. Gallup, Inc. (D. Neb. 7/8/14) (h/t We Know Next) is an ADA case. During discovery, the employer learned that the plaintiff had communicated, via Facebook, with her cousin-lawyer about her termination. The plaintiff claimed that the attorney-client privilege shielded the communications from discovery. The employer argued that the plaintiff waived the privilege through the public nature of the discussion on Facebook. When the plaintiff couldn’t show otherwise, the court ordered the communication to be produced.

No one should ever share confidential information on social media. Posting something on Facebook (or Twitter, etc.) is tantamount to publishing it on the front page of your local newspaper.  If something is a secret, keep it that way by keeping it off social media.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, July 31, 2014

6th Cir. invalidates individual waivers of FLSA collective action participation


The wage-and-hour class or collective action lawsuit is one of, if not the, greatest risk facing employers. Many of these lawsuits are filed by disgruntled ex-employees. And, many employers seek to limit their risk by securing waivers from employees, in which employees covenant not to participate in such a lawsuit, typically in exchange for severance pay or some other consideration. Increasingly, however, these waivers have come under fire.

The most recent attack comes from the 6th Circuit, which, in Killion v. KeHE Distributors (6th Cir. 7/30/14) [pdf], held that severance-agreement waivers of one’s right to participate in an FLSA collective action are invalid.

The key facts of Killion are simple. KeHE distributes specialty ethnic and health foods to retailers. In early 2012, it discharged 69 sales reps as part of a restructuring. KeHE offered a severance package to each affected employee, in exchange for a release a claims, in addition to a promise “not to consent to become[ ] a member of any class or collective action in a case in which claims are asserted against the Company that are related in  any way to [their] employment or the termination of [their] employment with the Company.”  As part of a later-filed FLSA collective action seeking unpaid overtime, the plaintiffs sought to include the 69 laid-off sales reps and invalidate the collective action waivers set forth in their severance agreements.

The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.

The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue and individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.
Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.
As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context.

For now, at least in the 6th Circuit, it appears that individuals waivers of the right to join wage-and-hour collective actions are dead.

Wednesday, July 30, 2014

NLRB seeks to supersize its joint-employer standard


The NLRB is waging war on employers, and it’s drawing its latest battle line at the McDonald’s drive-in. Yesterday, the NLRB Office of General Counsel announced that it has authorized complaints against 43 different McDonald’s franchises; it also announced that in each case it will issue a complaint against the franchisor, McDonald’s, USA, LLC. The problem, however, that in no case does McDonald’s own the restaurant or employ the workers. Instead, McDonald’s merely licenses its trademarks and operating procedures to the local franchisees. The franchisees, in turn, hire, fire, discipline, pay, and take all other responsibilities for the employees. As a “joint employer,” however, McDonald’s will share liability with the direct employer as if it stood in their shoes.

This announcement by the NLRB is its latest salvo in a war it is waging against employers. In May, the NLRB asked for interested parties to file briefs on the issue of whether the NLRB should revisit its joint-employer standard.

Under the current joint-employer standard, to which the NLRB has adhered for at least 30 years, the Board looks to whether the employer exerts direct and meaningful control over matters related to the employment relationship, such as hiring, firing, discipline, supervision, and direction. The current iteration of the NLRB, however, seeks to loosen the rules to find joint employment whenever one wields sufficient influence over the working conditions of the other entity’s employees. The operational requirements of a franchise relationship will likely trigger this significant-influence test.

According to the New York Times, McDonald’s plans to contest these decisions. Frankly, it has no choice. If a franchisor is a joint employer with its franchisee, the franchisor would not only share liability for the franchisee's unfair labor practices, but also its wage-and-hour violations, acts of discrimination, and other employment sins, not to mention claims related to employees’ negligence, such as slip-and-falls and food-related claims. This liability will be a tough nut for franchisors to swallow, since they exercise no control and bear no responsibility for the employees.

These cases are far from over. In fact, they are just at their beginning. All that has happened so far is that the NLRB has authorized complaints to issue. Hearings will be held, ALJ decisions will be written, appeals will be taken to the NLRB in Washington, and, ultimately, appeals to federal circuits courts and the Supreme Court. This issue is years from a resolution, but nevertheless warrants notice, as it serves as further evidence of the aggressive pro-union position the current iteration of the NLRB is putting forth.

Tuesday, July 29, 2014

Will the Ohio Supreme Court eliminate manager and supervisor liability for discrimination?


Ohio’s discrimination is unique in that it allows for the imposition of individual liability against managers and supervisors for their personal acts of discrimination. The case, Genaro v. Central Transport (1999), is the bane of defense lawyers and employers alike. Aside from adding a complicating element to cases by including employees in the matrix of sued parties, it also permits plaintiffs lawfully to add a non-diverse parties and keep cases from being removed to federal court.

There is hope, however, that Genaro may go the way of the dodo. Currently pending before the Ohio Supreme Court is Hauser v. City of Dayton. The specific question presented by this sex discrimination case is whether, under Genaro, Ohio’s employment discrimination statute imposes civil liability upon a manager or supervisor of a political subdivision, or whether such individual enjoys immunity as an agent of such subdivision. If the Supreme Court holds that Revised Code Ch. 4112 specifically imposes liability upon an individual manager or supervisor, then immunity cannot hold. Thus, the Court will have to decide whether Genaro is a valid interpretation of the definition of “employer” under R.C. 4112.01(A)(2).

The oral argument in Hauser offered few hints on how the Court might rule. For companies that have operations in Ohio, Hauser is the most important decision currently pending before the Ohio Supreme Court. To decide this issue of political subdivision immunity, the Court will necessarily have to pass judgment on the continued validity of Genaro and its imposition of individual liability. A ruling against the employee in this case would be a huge win for employers. The elimination of Genero would bring not only bring Ohio in line with federal law, but also with the overwhelming majority of states. It would bring a halt to the gamesmanship of adding individual defendants to lawsuits to keep claims away from federal court. My fingers are crossed that the Court does right by employers in this case. When the Court issues its decision, I’ll report back.

Monday, July 28, 2014

“Unionism” as a protected class?


Way back in 2012, the New York Times published an op-ed titled, A Civil Right to Unionize, which argued that Title VII needs to be amended to include “the right to unionize” as a protected civil right. At the time, I argued that including “unionism” as a protected class was the worst idea ever. Apparently, at least one Congressman disagrees with me.

MSNBC is reporting that later this week Rep. Keith Ellison (D-Minn) “plans to unveil legislation that would make unionization into a legally protected civil right,” on par with “race, color, sex, religion and national origin.” His goal is to make it “easier for workers to take legal action against companies that violate their right to organize.”

I agree with Representative Ellison that employees should never be fired for “expressing an intent to support union activity.” The problem with his idea, however, is that this is a right that the law already protects. Sec. 8(a)(3) of the National Labor Relations Act makes it an unfair labor practice for an employer … by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

So there is no mistake on how I feel about this proposal, here’s what I said in March 2012, in response to the Times’s op-ed on this issue:

With apologies to union supporters, there is no reality in which “unionism” exists on the same level as race, sex, disability, or the other protected classes. The “greatest impediment” to unions isn’t “weak and anachronistic labor laws.” It’s intelligent and strong-willed employees who understand that whatever benefit they might receive from a labor union is not worth the dues that come out of their paychecks.

And, the reality is that despite all of this pro-union rhetoric, labor unions are doing just fine without any additional help. Unions wins more than two-thirds of representation elections. All this proposal does is increase the burden for employers, without providing any appreciable benefit to employees — which is why I feel comfortable asking if this proposal is the worst idea ever.

There is no chance this bill will go anywhere but the legislative trash heap if it’s introduced as promised. Nevertheless, it serves as a good reminder that there exists legislators who want to make you job as an employer harder than it already is.

Friday, July 25, 2014

WIRTW #329 (the “amicus” edition)


The ABA Journal has opened nominations for its annual list of the best legal blogs, known as the Blawg 100. I’ve been fortunate enough to be selected the past four years. The ABA Journal is soliciting opinions for whom to include this year. I’ve already submitted my list. Please take a few moments of your time and do the same. The nomination form is available here, and the deadline for nominations is August 8.

Here’s the rest of what I read this week (and last week):

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, July 24, 2014

Customer preference and race discrimination—when the customer isn’t right


The EEOC has sued a Chicago auto parts retailer for race discrimination after it fired an African-American store manager. The store was located in a heavily Hispanic Chicago neighborhood. THe company decided to eliminate or limit the number of non-Hispanic employees working at the store, believing that its Hispanic customers preferred to interact with Hispanic employees. When the manager refused to report to another store, the EEOC claims he was fired.

John Hendrickson, the EEOC’s regional attorney in Chicago, explains in a news release why the agency filed suit.
Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable. When the employer is a major national brand and a leader in its industry, it’s even worse. Everyone must understand that supposed customer preference is no excuse for discrimination—it’s still illegal, and the EEOC will step in to challenge it.
Mr. Hendrickson is correct. As one federal court explains, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” Avoid the trap of acting on a mistaken belief that customers will only deal with like-skinned employees. Simply, the customer can never choose the race of the person working for you. The customer might be right about a lot things, but discrimination is not one of them.

Wednesday, July 23, 2014

Orange is the new sexual harassment lawsuit


Orton-Bell v. State of Ind. (7th Cir. 7/21/14) [pdf] concerns allegations of sexual harassment levied by a substance-abuse counsel at an Indiana maximum security prison against her co-workers and superiors. The allegations break down into two categories:
  • Other employees and correctional officers at PCF were having sex on Orton-Bell’s desk. When she complained, a supervisor told her he didn’t care as long as offenders were not involved. Another co-worker suggested she clean her desk every morning.
–and–
  • Orton-Bell was called “Cinderella” and “Princess” by male employees.
  • She received excessive pat-downs from female correctional officers. 
  • On one occasion, Orton-Bell was required to remove her sweater in the shakedown area so that the sweater could be sent through a scanner. This caused Orton-Bell’s spaghetti-strap camisole tank top to be exposed to male employees and offenders.
  • Male employees made comments about how the pat-downs were “almost like sex for them.”
  • Orton-Bell was not permitted to wear jeans, but male employees were.
  • Male employees engaged in a barrage of sexual banter with Orton-Bell in person and via email, including a comment from the male superintendent that “her ass looked so good that it would cause a riot.” 
The court concluded that the sex-on-desk allegations could not support a claim for sexual harassment because she could not prove the conduct, while egregious and offensive, was because of her sex.
The notion that night-shift staff had sex on her desk because she was a woman is pure speculation.… If there were evidence that the night-shift staff were using her office because she was a woman, and her supervisors were indifferent, that would be enough. If there was evidence that night-shift staff similarly used a man’s office, and her supervisors intervened in that circumstance but not in her circumstance, that would be enough. There is neither. Her supervisors’ insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII.… 
The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell’s desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner. Accordingly, this incident, while egregious, does not support a hostile work environment claim. 
The remaining allegations, however, painted a different story.
The constant barrage of sexually charged comments, however, was clearly pervasive, offensive, and based on Orton-Bell’s sex.… 
The record does reveal an instance where, in an email conversation with a co-worker named Bruce Helming, she participated in vulgar banter. However, while that may lead a jury to conclude that she was not subjectively offended by the environment, one private conversation via email is not enough for us to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome sexually charged comments in the environment.
What does this case teach us?
  1. Apparently, after-hours sex on workplace desks between co-workers is a real thing.
  2. “Because of sex” has real teeth to it. No doubt, the desk-sex is gross and offensive. Yet, Orton-Bell could not offer any evidence that the use of her desk was for any reason other than the fact that it was located in a private office. Absent evidence that the use of her desk was sex-based, that allegation could not support a harassment claim.
  3. An employee’s participation in some sex-based joking can, under the right circumstances, show that the work environment was not subjectively hostile. One email containing vulgar banter with a co-worker, however, likely is not enough. 
Let me leave you with this thought. If your workplace is sexually charged, it will catch up with you eventually. I cannot fathom the difficulties managing employee behavior in a maximum security prison. Nevertheless, Title VII does not stop at the door just because the workplace is inherently hostile. 

[Hat tip: Indiana Law Blog, via Andrew Cohen]

Tuesday, July 22, 2014

President signs Executive Order banning LGBT discrimination by the federal contractors and government


Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation and gender identity discrimination. Executive Order 11478, which already banned sexual orientation discrimination by the federal government, now also includes a prohibition against gender identity discrimination. The provisions affecting federal employees takes effect immediately. Those impacting federal contractors will take effect within 90 days, after the Secretary of Labor implements regulations.

Currently, only 18 states prohibit employment discrimination based on sexual orientation and gender identity. Ohio is not one of them. These amendments will extend these protections to 28 million federal employees and employees of federal contractors. Thus, if you are an Ohio company with federal contracts, this prohibition will apply to you.

It is time for employers to stop invidious discrimination against LGBT employees. According to the White House, 91% of Fortune 500 already prohibit discrimination based on sexual orientation, and 61% already prohibit discrimination based on gender identity. Yet, according to President Obama, “In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense.… I firmly believe that it’s time to address this injustice for every American.” 

I agree. It’s incomprehensible and unjustifiable for an employer to discrimination on the basis of sexual orientation and gender identity. It’s antithetical to what this country stands for — government of the people, by the people, for the people, and justice for all (no matter with whom they happen to go to bed at night). Eventually, Congress will act, pass ENDA, and make LGBT discrimination a thing of the past. Until then, do right by your employees. Enact policies prohibiting this type of discrimination in your workplace. Send a message that you are an employer of inclusion, and not exclusion. 

Monday, July 21, 2014

When your plaintiff is a prostitute


Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad—that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have a lot of options, other than to hope you have insurance and to know that someone likely is going to write a big check.

Then, you receive a gift—knowledge that the employee might hold a side job as a prostitute. That information doesn’t excuse or defend the supervisor’s actions (which are beyond deplorable), but they do provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, you serve discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Does the court allow you to take this discovery?

Here’s how one Ohio federal court recently ruled, in Hulec v. JH Bennett & Co.
Plaintiff Hulec requests lost wages and damages for emotional distress. Evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages Plaintiff is entitled to should she win this case. … 
The Court allows limited discovery, through a reopened deposition or interrogatories, into these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the past five years; (2) the frequency with which she has performed those services; (3) her income from those services; and (4) any medical or psychological treatment she received related either to her sexual assault or to other sexual encounters.
In cases like Hulec, victory is differently measured. In this case, a settlement that will not throw the employer into bankruptcy is a win. It is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, that mitigation came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the fact of difficult cases. You pay us a lot of money to defend you. Let us earn that money with our creativity. As long as you are willing to keep an open mind to what it means to “win” a case, we might surprise you.

Thursday, July 17, 2014

Should you limit bathroom breaks for employees?


Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a mere six minutes per day. 

The company reports that it had to limit bathroom use because employees were spending too much potty time outside their scheduled breaks. According to CNN, the company claims employees lost 120 hours of lost production per month as a result. The Daily Mail reports that the company supposes that employees are spending the time texting instead of taking care of bathroom business. According to the employees’ union rep:
The company has spreadsheets on every union employee on how long they were in the bathroom. There have been meetings with workers and human resources where the workers had to explain what they were doing in the bathroom.
Take note that this issue was brought to a head by a labor union. Do you know how to keep your workplace union-free? 

DON’T IMPLEMENT RULES LIMITING BATHROOM TIME. 

Employees don’t organize over issues like wage or benefits. They organize because they don’t feel like they have a voice with management. Maintain channels of communication. Have an open door through which employees can pass to discuss concerns and air grievances. And, for Pete’s sake, don’t implement Orwellian work rules. What are you supposed to do if an employee is spending too much time in the bathroom texting? Discipline that employee for slacking off. Trust me, your other employees will get the message without you having to limit all of their toilet time to six minutes per day. 

For more on workplace bathroom breaks, including how to implement reasonable bathroom rules in your workplace, read When you gotta go, you gotta go: The right to workplace bathroom breaks.